R. v. Zogaj Date:, 2015 BCPC 303

Citation: R. v. Zogaj Date: 20150625 2015 BCPC 0303 File No: 78334-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HAJRULLAH ZOGAJ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. BROWN Counsel for the Crown: K. Guest Counsel for the Accused: D. Karp Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 11, May 11, 2015 Date of Judgment: June 25, 2015

[ 1 ] THE COURT : These are my Reasons for Judgment in the caser of R. versus Hajrullah Zogaj , file 78334-1. INTRODUCTION [ 2 ] Hajrullah Zogaj is a co-accused charged with three counts which proceeded by indictment.

Under Count 1 he is charged that he unlawfully produced a controlled substance, Cannabis, contrary to s. 7(1) of the Controlled Drugs and Substances Act ( CDSA ), and under Count 2 he is charged that he unlawfully possessed a controlled substance, Cannabis, for the purpose of trafficking, contrary to s. 5(2) of the CDSA . [ 3 ] These offences were alleged to have occurred between March 12 and June 29, 2012 in Mission, B.C. The Crown is no longer proceeding on Count 3, diversion of electricity.

The Crown is also not proceeding against the other accused, Ferat Zogaj, as I understand he passed away. [ 4 ] A fairly sophisticated marihuana grow operation was found in the crawl space below a garage attached to a home on Neale Drive in Mission, B.C. The central issue in this case is whether or not the Crown has proven beyond a reasonable doubt that Hajrullah Zogaj had knowledge and control of that grow operation. THE CASE FOR THE CROWN BLERIM RACI [ 5 ] Mr. Raci owned the house at 8880 Neale Drive, Mission, B.C. where the marihuana grow operation was ultimately discovered.

In 2012, he rented the premises to Ferat Zogaj and this rental was arranged through Mr. Raci's friend. Mr. Raci met Ferat Zogaj in early March of 2012 and they both spoke Albanian. A rental agreement was entered into between Mr. Raci and Ferat Zogaj on March 10, 2012 for $2,000 per month. It was a one year residential tenancy agreement. [ 6 ] Mr. Raci only met with Ferat Zogaj the one time and the agreement was signed. Mr. Raci did not visit the home after entering into the rental agreement or any time prior to a search warrant being executed. In cross-examination, Mr.

Raci testified that he never saw the accused, Hajrullah Zogaj, until this first day of trial. He did not know if Hajrullah Zogaj resided at the premises. He was simply told by Ferat Zogaj that he would be living there with his family. CST. DESJARLAIS [ 7 ] Cst. Desjarlais has been an RCMP officer for approximately 11 years. He was the affiant of the Information to Obtain a Warrant (ITO) in regard to a suspected theft of electricity from the Neale Drive premises. He was also the briefing officer for the execution of the warrant on June 29th, 2012. An investigation of the Neale Drive home began on June 27, 2012.

B.C. Hydro first did some testing on June 27, 2012 regarding a suspected theft of electricity and Cst. Desjarlais drafted the ITO the next day after receiving the Hydro report. [ 8 ] On June 28th, 2012 Cst. Desjarlais drove past the Neale Drive home and noted that there were two vehicles in the driveway, one of which belonged to Hajrullah Zogaj, the accused. The officer did not smell vegetative marihuana on that date. [ 9 ] On June 29th, 2012 Cst. Desjarlais led the briefing as to the execution of the warrant. He assigned certain tasks to four other police officers present to execute the warrant. Cst.

Desjarlais confirmed that Hajrullah Zogaj was one of the persons in the home when the warrant was executed. Cst. Desjarlais arrived at the Neale home around 3:00 p.m. Within two minutes of the police announcing their arrival, Hajrullah Zogaj came out from the front door and he was detained for theft of electricity. Mr. Zogaj's father stood in the doorway and he was hooked up to an oxygen tank. Cst. Desjarlais entered the residence to secure it and he saw Mr. Zogaj senior and his wife sitting on the couch. He estimated Mr. Zogaj senior to be over 70 years of age. Mr.

Zogaj senior was described as a little old man who had a breathing apparatus hooked up to an oxygen tank which was on wheels. Mr. Zogaj senior had a breathing tube in his nose. This man could only travel as far as the hoses would allow. [ 10 ] Cst. Desjarlais reviewed many of the photographs marked as Exhibit 2 in this trial. Admissions were also made pursuant to s. 655 of the Criminal Code . There were two vehicles parked in front of the residence, a Volkswagen Jetta and an older red Mercedes. A gold minivan was parked around back and the plate did not have valid insurance.

The name attached to that plate was Hajrullah Zogaj. The residence had both an attached and detached garage. In the attached garage there was a plywood door on the floor which opened up to a set of stairs which led down to a crawlspace where a large marihuana grow operation was located. The crawlspace was secured by a locking door. Cst. Desjarlais did not discover the opening to the grow operation. It was discovered by another officer. [ 11 ] Sgt. Scott, who was then a corporal, was responsible for detailing the layout of the grow operation and the seizure of evidence.

According to the admissions, in grow room number 1 the RCMP seized 451 Cannabis plants, one CO2 generator, 20 HPS bulbs, 20 shrouds and two fans. In the electrical room number 2 the RCMP seized four fans, two box fans, three manual timers, three electrical panels and one dehumidifier. In dry room number 3 there were four drying racks. In grow room number 4 the RCMP seized 465 Cannabis plants, one charcoal filter, six shrouds, six HPS bulbs, two water barrels and one air conditioner. In grow room number 5 the RCMP seized 416 Cannabis plants, one air conditioner, two shrouds, 20 HPS bulbs and three fans. Cst.

Desjarlais confirmed that the marihuana found in each room was at various stages of maturity. [ 12 ] Photograph 20, bottom, depicts Mr. Zogaj senior holding two oxygen tanks on a roller with a plastic tube to his nose. Photograph 22, top, shows an elderly Mrs. Zogaj sitting on a couch chair. Subsequent photos depict the parents' bedroom with ensuite, a TV room, kitchen and dining room. There were three bedrooms in the home and it appeared lived-in. [ 13 ] Photograph 29, bottom, is of the Rogers bill in the name of Gafur R. Zogaj, which is in a smaller bedroom.

And photograph 30, top, is of a Human Resources statement of account in the name of Gafur Zogaj. Photograph 34, bottom, is a Fortis BC letter addressed to

Ferat Zogaj. [ 14 ] There are photographs of the master bedroom with an ensuite and walk-in closet. Male toiletries appear in the ensuite and there are leather jackets and the like in the closet. In photograph 39, bottom, one can see an electrical bypass in the attached garage and Cst. Desjarlais agreed that this was possibly covered over by a piece of wood. Photograph 41, top, depicts a brown wallet in the top drawer of a desk in the kitchen area. Hajrullah Zogaj's driver's licence was in the wallet. [ 15 ] When Cst.

Desjarlais was in the residence he could smell vegetative marihuana and it was more noticeable in some areas. The smell was strongest in the hallway leading to the master bedroom. There was a vent in a linen closet and the smell of vegetative marihuana was coming from that vent. While in the master bedroom Cst. Desjarlais could hear the sound of electrical fans. [ 16 ] In cross-examination Cst. Desjarlais admitted that Ferat Zogaj was on the Hydro account using a couple of different spellings. When Cst.

Desjarlais passed by the residence on June 28, 2012 he discovered one of the vehicles to be owned by the accused, but the registration showed his address to be in Surrey. When the accused was run on PRIME, his address was said to be in Surrey. [ 17 ] When Cst. Desjarlais took the accused into custody, no drugs or keys to the grow operation were found on his person. Further into cross-examination Cst. Desjarlais admitted that there was nothing to suggest a grow operation in the main part of the residence. The plywood lying across the stairway concealed the grow operation quite well.

He also conceded that the smell of vegetative marihuana was not overpowering. Keys were found in the house which opened the door at the bottom of the stairway leading to the grow operation. CST. JONES [ 18 ] Cst. Jones has been with the RCMP six years and he was asked to assist with the execution of a search warrant on June 29th, 2012. His task was to hold the south side of the Mission residence and he was first positioned outside the home. Cst. Jones saw then Cpl. Scott trying to get the attention of an elderly man in the kitchen and he saw that elderly man struggle to move.

This elderly man ended up opening the back door and letting Cst. Jones into the home. According to Cst. Jones the elderly man was pale. He seemed ill and he was hooked up to an oxygen tank. He was in his late 80s or early 90s. This man is pictured at page 20, bottom of Exhibit 2. [ 19 ] Cst. Jones then began to search the residence and clear rooms. He could smell the faint odour of growing marihuana. He could also hear a humming noise. Cst. Jones went into the attached garage and saw an eight foot by four foot sheet of plywood lying on the ground.

He lifted up the plywood and found a stairwell down to the grow operation. Cpl. Scott brought a key to open the door below into the grow operation. DRUG EXPERT, CPL. DOUGLAS [ 20 ] I should say at the outset that it was admitted that 1332 Cannabis plants were seized from the grow operation on Neale Drive and whomever possessed these plants did so for the purpose of trafficking. Cpl. Douglas was qualified to give expert opinion evidence pertaining to production, price, packaging, distribution and use of Cannabis. His training and experience is set out in his curriculum vitae at tab D of Exhibit 1. [ 21 ] Cpl.

Douglas' opinion evidence is at tab E of Exhibit 1 with a deletion at the end of his report. He gave the opinion that the operation found in the crawlspace was an illegal commercial venture producing Cannabis for sale for profit. A total of 1332 healthy marihuana plant clones were seized and the minimum yield is three ounces of marihuana bud per plant at maturity. Using conservative estimates, 1332 plants could yield 249 pounds or 113,284 grams. This could produce anywhere from 340,000 to 556,000 marihuana cigarettes. If sold by the ounce the value of the crop at maturity is between 800,000 to $999,000.

If sold by the pound the value of the crop at maturity is about $548,000 to $697,000. [ 22 ] Three rooms were being used to grow marihuana. The plants in room 1 were full of bud. The plants in room 4 were small with no bud and the plants in room 5 appeared further along but had not yet started to bud. Box fans were used to circulate the air and the ballasts had to maintain a charge for 1,000 watt bulbs. So a 110 outlet would be insufficient. More mature plants were on a 12-hour light cycle, whereas immature plants were on an 18-hour light cycle. [ 23 ] Cpl.

Douglas noted that the air conditioner was seven feet long and very heavy. It would require three people to be secured to the joists. Cpl. Douglas also indicated these plants were being hand watered based on the pictures presented. The immature plants on an 18-hour cycle would need to be watered almost every day. Full grown plants can be watered every two days, however, all plants also needed to be checked for pests and heat damage. Cpl. Douglas opined that the plants in these three rooms would require one to two hours per day of watering and tending. The mature plants were one to two weeks away from harvest.

Five hundred plants with bud would take the better part of a day to trim the bud after they had been dried. In cross-examination Cpl. Douglas stated this was a clean, fairly sophisticated grow operated. This operation would have been labour intensive to set up. SGT. SCOTT [ 24 ] Sgt. Scott has been a police officer since 1998 and he was present at the Neale Drive residence when the warrant was executed on June 29th, 2012. He saw Cst. Desjarlais dealing with the people at the front of the home, but he entered the back door. Immediately he could smell the stale odour of growing marihuana.

By stale he meant the smell was different than it would be in the grow room itself. [ 25 ] Sgt. Scott detected the marihuana odour right in the kitchen area. He went into the master bedroom and he could hear fans. He put his ear to the floor to try to determine where the sound was coming from. When his ear was to the ground he could hear humming, a sound a ballast would make. Sgt. Scott could not locate the grow operation initially, but he ultimately discovered it with another officer in the crawlspace below the attached garage.

[ 26 ] Sgt. Scott confirmed that there were 451 Cannabis plants in grow room 1, 465 plants in grow room 4, and 416 plants in grow room 5. He said there were a total of 1377 plants, but the admissions and expert report refer to 1332 healthy marihuana plant clones. [ 27 ] Sgt. Scott referred at length to the exhibit flowchart. Exhibit 4 is a piece of RBC mail directed to Hajrullah Zogaj. It had a Surrey address but had a postal redirection to the Neale Drive residence dated June 18th, 2012.

Exhibit 5 is a Canadian Tire envelope addressed to Hajrullah Zogaj in Surrey, but redirected to the Neale Drive residence with a date, "12/06/24." A magazine was addressed to Hajrullah Zogaj at a Surrey address but there was a redirect stamp for the Neale Drive address. It should be noted that these three items were on the desk in the kitchen area and the redirect label includes four names including the accused. [ 28 ] A Rogers bill marked Exhibit 7 was opened. It was to Hajrullah Zogaj with a June 6th, 2012 invoice date. The bottom was torn. Again this was found on the desk.

There was some further RBC mail marked Exhibit 8 which was opened. It had the postage redirection of four names but the RBC letter inside was directed to Hajrullah Zogaj The redirection service was to end March 6th, 2013 and the postage time stamp was April 2, 2012 at 19:53 hours. [ 29 ] A Revenue Services of B.C. envelope was located and marked at trial as Exhibit 9 with the same postage forwarding to the Neale Drive address to expire March 6th, 2013.

Again four names are on the redirection including the accused, but this invoice inside was directed to Ferat Zogaj. [ 30 ] Canada Revenue Agency mail was opened and marked Exhibits 11 and 12. There were GST notices directed to Hajrullah Zogaj with a Surrey address, however, they were forwarded to four names including the accused at the Neale Drive address. Some further RBC mail was opened and marked Exhibit 10. It was a statement to Hajrullah Zogaj from February 14th to March 13th, 2012. [ 31 ] Sgt. Scott also located a key to the grow operation.

He could not recall specifically if the key was on the desk in the kitchen area. In a safe in the walk-in closet of the master bedroom, a wallet was located. In that wallet various credit cards were found in the name of the accused. The cards included five cards for RBC and a Sears card.

Also in the safe the following documents were located: two passports in the name of Hajrullah Zogaj, federal papers in the name of Hajrullah Zogaj, citizenship papers in the name of Hajrullah Zogaj, photographs which included the accused, immigration papers in the name of Hajrullah Zogaj and a ring. [ 32 ] In cross-examination Sgt. Scott stated that he seized the wallet in the drawer of a desk in the kitchen area. The driver's licence in the wallet was for Hajrullah Zogaj, but it may have included a Surrey address. Sgt.

Scott agreed that some of the mail referred to above had several names on it for postage forwarding purposes. KNOWLEDGE AND CONTROL [ 33 ] There is no question that 1332 marihuana plants were found within a fairly sophisticated marihuana grow operation in the crawlspace of the attached garage to a home on Neale Drive in Mission, B.C. There is also no question that whomever had knowledge and control of these plants did so for the purpose of trafficking. [ 34 ] The central issue in this case is whether Hajrullah Zogaj had knowledge and control of the grow operation.

Section 2 of the CDSA adopts the definition of "possession" found in s. 4(3) of the Criminal Code which states: For the purposes of this Act , (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or ... another person; and (

b) where one or (sic) two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 35 ] In this case, the focus is on the latter two phrases in s. 4(3) , that is constructive possession in subsection (a)(

i) and (ii) and joint possession in subsection (b). Our Court of Appeal in R. v. Wu , 2010 BCCA 589 , discusses these concepts. In the context of constructive possession, the Crown must prove that an accused had the ability to exercise some power, some measure of control over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised. See paragraph 22 of Wu . I would also add that when considering constructive possession, the Crown does not necessarily have to prove that the accused had a proprietary interest in the item or that he manually handled the item.

At the same time, passive acquiescence is not sufficient to prove control. [ 36 ] In the case at bar the issue of constructive possession necessarily involves an examination of circumstantial evidence. The "trier of fact 'must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty'." See paragraph 24 of Wu .

The court must look at the totality of the evidence and " it must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. " See paragraph 26 of Wu . [ 37 ] Insofar as knowledge itself is concerned, one must bear in mind that there is not simply the concept of actual knowledge, but also recklessness and wilful blindness.

Defence counsel and Crown counsel provided me with a variety of cases where circumstantial evidence was either sufficient or insufficient to support a finding of constructive possession. These cases are very fact specific, but some further principles do emerge. In R. v. Rong , 2010 BCCA 165 , the court upheld a conviction where the accused resided "if not permanently, at least occasionally" at the residence where a grow operation was found.

The fact that four other people were associated with that property did not affect the assessment of the accused's involvement in the grow operation. [ 38 ] The Wu case, previously cited, at paragraph 35 refers to the concept that marihuana production is a labour-intensive activity and

it was unlikely that the owner of a grow operation would allow access to persons whom he or she did not trust. [ 39 ] In R. v. Polukoshko , February 12th, 1992, New Westminster Supreme Court, unreported, the court acquitted by focusing on the fact that there was no evidence the accused there had access to the growing operation by key. In R. v. Bailey , [1999] B.C.J. No. 3030 , Judge Antifaev of our court acquitted because she was not satisfied that the accused did anything more than acquiesce to the introduction of plants in a situation over which he felt he had little control. In R. v. Nguyen , [2005] A.J.

No. 895 , the Alberta Court of Queen's Bench justice acquitted because control was not the only reasonable inference to be drawn from those facts. The accused occasionally slept at the suspect residence, and the court found it possible the accused was doing this so that the owner or any other person who had an insurable interest in the residence would not lose their insurance coverage. [ 40 ] In the case at bar I conclude that the Crown has proven beyond a reasonable doubt that Hajrullah Zogaj was in constructive or joint possession of the marihuana grow operation on Neale Drive in Mission, B.C.

When I examine the evidence in its totality, the only reasonable inference is that Mr. Zogaj had knowledge and some measure of control over the grow operation. The following factors taken in combination bring me to this conclusion: 1. Hajrullah Zogaj was in fact present in the Neale Drive home when the warrant was executed on June 29th, 2012. 2. The accused's 2001 Dodge Caravan had been there on June 28th, 2012, as well as the date the warrant was executed. I acknowledge that the vehicle was not insured and was connected to a Surrey address, but I note that all of Mr.

Zogaj's mail was being redirected to this Mission address. 3. All three officers could smell vegetative marihuana in the home. The smell may have been faint, but for anyone occupying the home for a period of time the smell would be more obvious. Again Mr. H. Zogaj was in the home on June 29th, 2012. 4. The police officers could also hear a constant electrical noise in the main floor of the home. The noise may not have been pronounced, but combined with all other factors it is further indicia going towards the accused's knowledge of the grow operation. 5.

Based on the officer's evidence and the photographs, I am satisfied that the elderly couple occupied the front bedroom. There is male clothing in the walk-in closet adjacent to the main bedroom, and moreover, there are very important personal papers of Hajrullah Zogaj in the safe in that walk-in closet. There are also male toiletries in the en suite to the master bedroom. This factor combined with all others satisfies me beyond a reasonable doubt that Mr. Zogaj junior, this accused, resided at the Neale Drive residence if not permanently, at least occasionally. 6.

This safe in the walk-in closet is of particular importance. Located within that safe are the accused's passports, federal papers, citizenship papers and immigration papers. There was also a wallet with his bank cards and credit cards. To access these important papers the accused would by necessity need to enter the home. 7. Significant mail in the name Hajrullah Zogaj was being redirected by the post office to Neale Drive. This mail included RBC mail, a Rogers bill and GST notices. 8. There was a labour-intensive grow operation of some 1332 plants. The plants were hand watered.

The watering and tending of the plants would be a virtually daily exercise. Harvesting would even be more labour-intensive. Even if the accused were present on an occasional basis, he must be taken on these total facts to have known and participated in the grow operation. The two elderly people appear incapable of tending to this grow operation to any degree. 9. Hajrullah Zogaj's wallet is found in the desk in the kitchen common area. Another wallet of his was in the safe in the walk-in closet. His driver's licence is in the wallet in the desk, albeit with a possible Surrey address.

I note that his mail was being redirected to Neale Drive, so the Surrey address which may have been on the driver's licence had simply required updating. The keys to the grow operation were found somewhere relatively near to the desk where the accused's wallet is found. [ 41 ] I appreciate that Hajrullah Zogaj's name was not on the lease, but based on all the evidence I am satisfied beyond a reasonable doubt that he resided at the Neale residence at least occasionally.

Again, the important personal papers are in a safe in a walk-in closet to the master bedroom and his mail is being redirected to Neale Drive. [ 42 ] It is also true that other persons including the accused's parents were associated to the Neale Drive address, but that fact does not detract from the accused being a party to the offence as charged.

I also do acknowledge that the grow operation was not easy to locate, but the allegation of constructive or joint possession is made out considering all of the factors above, including the smell of vegetative marihuana, the electrical noise and the labour-intensive nature of the grow operation. [ 43 ] At this juncture I would have normally asked the accused to stand up, but I will simply say that I find him guilty on Count 1, the unlawful production charge, and Count 2, the trafficking charge. G. BROWN Provincial Court Judge